Citation Nr: 9811422
Decision Date: 04/13/98 Archive Date: 04/28/98
DOCKET NO. 94-32 997 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for residuals of a
lumbar laminectomy.
2. Whether new and material evidence has been presented to
reopen a claim for service connection for a low back
disorder, other than residuals of a lumbar laminectomy.
3. Whether there was clear and unmistakable error in that
portion of a February 1989 rating decision that failed to
grant service connection for a psychiatric disorder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on a period of active duty for training
from August 1983 to December 1983 and on active duty from
September 1986 to August 1988.
This case was previously before the Board of Veterans'
Appeals (hereinafter Board) on appeal from adverse action by
the St. Petersburg, Florida, Regional Office (hereinafter
RO). With the exception of the issue of whether there was
clear and unmistakable error in that portion of a February
1989 rating decision that failed to grant service connection
for a psychiatric disorder, which will be adjudicated in the
decision below, the other issues on appeal require additional
development which will be discussed in the Remand attached to
the end of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
It is essentially contended that because the evidence of
record at the time of a February 1989 rating decision could
only reasonably be concluded to have demonstrated entitlement
to service connection for a psychiatric disorder, that
portion of the February 1989 rating decision which denied
entitlement to service connection for a psychiatric disorder
was clearly and unmistakably erroneous. The veteran’s
representative also contends that the February 1989 rating
decision was erroneous because it only addressed a claim for
service-connection for a personality disorder, and did not
properly consider the fact that a dysthymic disorder was
diagnosed at that time. It is also contended that the
February 1989 rating decision was clearly and unmistakably
erroneous because all the service medical records had not
been obtained and the duty to assist the veteran in the
development of his claim had not been accomplished.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that clear and unmistakable error
was not committed in that portion of a February 1989 rating
decision that failed to grant service connection for a
psychiatric disorder.
FINDINGS OF FACT
1. Service connection for a personality disorder was denied
by a February 1989 rating decision on that basis that
service-connection cannot legally be granted for a
personality disorder; the veteran was notified of this
decision in February 1989 and a timely appeal to this
decision was not filed.
2. The veteran had filed a claim seeking service connection
for a personality disorder.
3. Evidence of file with reference to a dysthymic disorder
at the time of the February 1989 rating action did not
include an opinion that it was related to service.
4. The February 1989 rating decision did not involve
incorrect application of the statutory or regulatory
provisions extant at the time and was a reasonable exercise
of rating judgment given the relevant facts known at that
time; a review of the evidence of record at that time does
not compel the conclusion that reasonable minds could only
agree that entitlement to service connection for a
psychiatric disorder was warranted at the time the decision
was entered.
CONCLUSION OF LAW
That portion of the February 1989 rating decision which
denied entitlement to service connection for a personality
disorder was not the product of clear and unmistakable error.
38 U.S.C.A. §§ 1131, 5017 (West 1991); 38 C.F.R. §§ 3.102,
3.105, 3.303 (1989); § 3.105(a) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
Previous final determinations on which an action was
predicated will be accepted as correct in the absence of
clear and unmistakable error. Where evidence establishes
such error, the prior decision will be reversed or amended.
38 C.F.R. § 3.105(a) (1997).
If the veteran wishes to reasonably raise a claim for clear
and unmistakable error, there must be some degree of
specificity as to what the alleged error is and, unless it is
the kind of error that, if true, would be clear and
unmistakable on its face, persuasive reasons must be given as
to why the result would have been manifestly different but
for the alleged error. Fugo v. Brown, 6 Vet.App. 40, 44
(1993). As stated by the United States Court of Veteran’s
Appeals (hereinafter Court):
[M]erely to aver that there was [clear
and unmistakable error] in a case is not
sufficient to raise the issue. Stated
another way, while the magic incantation
"clear and unmistakable" need not be
recited in haec verba, to recite it does
not suffice, in and of itself, to
reasonably raise the issue. It must
always be remembered that [clear and
unmistakable error] is a very specific
and rare kind of "error." It is the kind
of error, of fact or of law, that when
called to the attention of later
reviewers compels the conclusion, to
which reasonable minds could not differ,
that the results would have been
manifestly different but for the error.
Thus even where the premise of error is
accepted, if it is not absolutely clear
that a different result would have
ensued, the error complained of cannot
be, ipso facto, clear and unmistakable.
Id. at 43-44 (1993) (citing Russell v. Principi, 3 Vet.App.
310, 313 (1992) (en banc)). Additional relevant precedent is
stated as follows:
[The] Court propounded a three-pronged test to
determine whether [clear and unmistakable error] is
present in a prior determination: (1) “[e]ither
the correct facts, as they were known at the time,
were not before the adjudicator (i.e., more than a
simple disagreement as to how the facts were
weighed or evaluated) or the statutory or
regulatory provisions extant at the time were
incorrectly applied,” (2) the error must be
“undebatable” and of the sort “which, had it not
been made, would have manifestly changed the
outcome at the time it was made,” and (3) a
determination that there was [clear and
unmistakable error] must be based on the record and
law that existed at the time of the prior
adjudication in question.
Damrel v. Brown, 6 Vet.App. 242, 245 (1994) (quoting Russell,
3 Vet.App. at 313-14). See also Degmetich v. Brown, 8
Vet.App. 209 (1995).
A failure to fulfill the duty to assist cannot constitute
clear and unmistakable error; clear and unmistakable error
also cannot be premised upon evidence which the veteran
alleges should have been of record at the time of the
adjudication in question. See Caffey v. Brown, 6 Vet.App.
377 (1994).
Turning from a description of the pertinent legal provisions
to a summary of the relevant facts, the veteran filed a claim
for service connection for a “personality disorder” in
September 1988. This claim was denied by a February 1989
rating decision to which the veteran was notified in that
month. A timely appeal was not filed. Pertinent evidence of
record at that time included the service medical records and
reports from a September 1988 VA medical examination and
November 1988 VA psychiatric examination. The service
medical records reflect treatment at a U.S. Naval Hospital in
Okinawa, Japan, from December 10, 1987, to December 21, 1987,
for what was diagnosed in pertinent part at that time as
brief reactive psychosis, borderline personality disorder,
which was listed as the “primary diagnosis,” and mixed
cephalgia. The reports from this hospitalization indicate
that the veteran was having difficulty with various stressors
related to his family. A history of suicide attempts prior
to the veteran’s entrance to service was also reported.
The veteran was said to have “reconstituted” quickly during
the December 1987 psychiatric hospitalization with minimal
use of neuroleptics and the benefit of a structured
environment. It was indicated that following this
hospitalization, the veteran was “medevaced” to the United
States for further evaluation and treatment. The remaining
service medical records of record, including the examination
for discharge purposes, do not reflect treatment for a
psychiatric disorder, although his DD Form 214 indicated the
veteran was discharged from service, without an
administrative discharge board, due to a personality
disorder. It is noted that after treatment the brief
reactive psychosis was said to have “resolved”. He had
headaches, which have been service connected, and the
personality disorder.
September 1988 VA examination reports include a diagnosis of
“anxiety-personality disorder.” The reports from the
November 1988 VA psychiatric examination show the veteran
stating that he was hospitalized in a psychiatric ward for
his last six months of service (this information was based
solely on the history of the veteran as the service medical
records were not reviewed.) His complaints at the time of
this examination included depression. The mental status
examination showed the veteran to be a very intense,
hypersensitive and constricted person. Insight and judgment
were fair and his memory was well-preserved. The diagnosis
was dysthymic disorder, and the examining psychiatrist stated
the veteran’s condition was moderately disabling and
necessitated outpatient psychiatric care.
The veteran, in his original application, sought service
connection, in pertinent part, for a personality disorder.
The February 1989 rating decision denied entitlement to
service connection for a personality disorder, on the basis
that this was not a “ratable entity.” The Board emphasizes
that under the law in effect now and at that time,
personality disorders are not “diseases” for which service
connection can be granted, and as a “matter of law” are not
compensable disabilities. 38 C.F.R. § 3.303(c); Beno v.
Principi, 3 Vet.App. 439, 441 (1992).
Analyzing the contentions of the veteran and his
representative, to the extent that they essentially are based
on the argument that the regional office failed to properly
weigh and evaluate the evidence, including the reports from
in-service psychiatric treatment and the post-service
diagnosis of a dysthymic disorder, before it at the time of
the February 1989 rating decision, such contentions do not
appear to raise a valid claim of clear and unmistakable error
under the holding of Fugo, which noted that “simple
disagreement as to the how the facts are weighed or
evaluated” cannot form the basis of a valid claim of for
clear and unmistakable error. Moreover, the contentions with
regard to the failure of the regional office to fulfill the
duty to assist the veteran, to include obtaining all
available service medical records, are also not
representative of a valid claim for clear and unmistakable
error under Caffey, 6 Vet.App. at 377.
Assuming that a claim for clear and unmistakable error has
been “properly pleaded” pursuant to Fugo, the Board
nonetheless does not conclude that the portion of the
February 1989 rating decision which denied entitlement to
service connection for a psychiatric disorder involved such
error that reasonable minds could only agree that entitlement
to service connection for a psychiatric disorder was
warranted at that time. The evidence before the adjudicators
at that time included a finding that the veteran’s
“principal diagnosis” upon in-service psychiatric
hospitalization in December 1987 was a personality disorder,
and the record from this hospitalization indicated the
veteran’s pre-service history included some psychiatric
difficulty. Also, the veteran’s DD Form 214 indicated the
veteran was discharged due to a personality disorder. While
the contention with regard to the purported failure to
consider the post-service diagnosis of dysthymic disorder is
noted, the probative value of this diagnosis is diminished by
the fact that the veteran’s medical history was not available
for review by the VA psychiatrist who conducted the November
1988 examination. Moreover, that examination report does not
contain an opinion that the disorder present was related to
any in-service occurrence or event. Again, failure to get
such opinion can not be clear and unmistakable error.
In short, the Board finds that it would have been reasonable
for the adjudicators in February 1989 to have concluded,
given the in-service evidence of a personality disorder, that
the weight of the evidence at that time showed the presence
of a personality disorder rather than an acquired psychiatric
disorder that had been incurred in or aggravated by service.
A finding of clear and unmistakable error requires that error
must appear undebatably. Akins v. Derwinski, 1 Vet.App. 228,
231 (1991). In light of the evidence above, the Board finds
no such “undebatable” error in the that portion of the
February 1989 rating decision which denied service connection
for a psychiatric disorder. Thus, for the reasons stated
above, the veteran’s claim that this portion of the February
1989 rating decision involved clear and unmistakable must be
denied.
ORDER
The claim for a finding of clear and unmistakable error in
that portion of a February 1989 rating decision that failed
to grant service connection for a psychiatric disorder is
denied.
REMAND
Tuning to the two remaining issues listed on the title page,
entitlement to service connection for residuals of a lumbar
laminectomy and whether new and material evidence has been
presented to reopen a claim for service connection for a low
back disorder, other than residuals of a lumbar laminectomy,
which are properly before the Board at this time (certain
other issues over which the Board does not at this time have
jurisdiction will be addressed in the following paragraphs),
the August 1996 Board remand requested that the medical
records, to include “initial consultation” and “follow-up”
reports, from back surgeries performed in a private medical
facility in 1991 be obtained. While some authorization and
consent forms for obtaining clinical records have been
obtained from the veteran, it is unclear if the veteran was
told by the RO of the necessity of providing authorization
for obtaining records from the back surgery performed in
1991. Given the importance of these records in the context
of the adjudication of the issues of entitlement to service
connection for residuals of a lumbar laminectomy and whether
new and material evidence has been presented to reopen a
claim for service connection for a low back disorder, other
than residuals of a lumbar laminectomy, the Board will again
upon remand request the RO to attempt to obtain these records
with the veteran’s cooperation. In light of this necessary
development, the Board will also in this remand direct the RO
to schedule the veteran for a VA examination which includes
an opinion as to whether there is a relationship between a
current back disability and in-service back pathology or
symptomatology.
The August 1996 Board remand found that several issues that
had not at that time been adjudicated were “reasonably
raised,” although it is emphasized that these issues were
not within the Board’s jurisdiction at that time, nor are
they now properly before the Board. One such additional
issue found by the Board to have been reasonably raised was
the issue of whether there was clear and unmistakable error
in that portion of the February 1989 rating decision which
denied entitlement to service connection for low back
disorder. This issue was not addressed in any rating action
completed since the August 1996 Board remand, as the
veteran’s representative indicated in a February 1998
presentation to the Board, and the RO therefore upon remand
will be requested to adjudicate the issue of whether there
was clear and unmistakable error in that portion of the
February 1989 rating decision which denied entitlement to
service connection for low back disorder. It is emphasized
that by this action, the Board is not assuming jurisdiction
of this issue, and that should the issue be denied by the RO,
the Board would only have jurisdiction over the issue if the
veteran submits a timely Notice of Disagreement and
Substantive Appeal addressing this issue.
Also noted by the veteran’s representative in his February
1998 presentation to the Board is the fact the reports from
the March 1997 VA psychiatric examination do not include an
opinion as to the etiologic relationship between the
dysthymic disorder then shown and service. Such an opinion
was requested by the Board in the August 1996 remand, and
another examination that includes an opinion as to the
relationship between any current acquired psychiatric
disability and service will be requested upon remand.
The veteran’s representative also indicated in his February
1998 presentation to the Board that his organization was
filing a notice of disagreement “as to all issues other than
those certified for appellate consideration adversely
disposed of in rating decisions of May and September 1997,”
and requested that the Board refer these matters to the
attention of the RO. In this regard, it is noted that the
following four issues addressed by the RO in 1997 rating
actions, but not currently on appeal to the Board, were
listed on a December VA Form 646 completed by the veteran’s
representative in December 1997: (1) Entitlement to service
connection for a psychiatric disorder other than a
personality disorder, (2) Entitlement to an extra-schedular
evaluation for migraine headaches, (3) Entitlement to an
earlier effective date for the grant of a 50 percent
evaluation for migraine headaches, and (4) Whether there was
clear and unmistakable error in that portion of the February
1989 rating decision which denied entitlement to service
connection for a right shoulder disorder. Thus, upon remand,
the RO will be requested to complete a “Statement of the
Case” addressing these additional four issues. It is
emphasized that these additional four issue are not currently
before the Board, and that a properly completed “Substantive
Appeal” addressing any such issue would be required in order
for the Board to have jurisdiction over any such additional
issue.
For the reasons stated above, this case is REMANDED for the
following development:
1. The veteran is to be contacted and
asked to provide authorization to obtain
all relevant reports, including initial
consultation reports, from the back
surgeries performed in 1991 at the
Catholic Medical Center, 100 McGregor
Street, Manchester, NH 03102. Any
records obtained from this source are to
be associated with the claims file. The
claims file is to contain documentation
of the attempts made to obtain these
records, and the veteran and his
representative should be informed of any
negative results pursuant to the
guidelines of 38 C.F.R. § 3.159 (1997).
2. Following the obtaining of any
records or a negative response pursuant
to the development requested above, the
veteran is to be afforded an appropriate
VA examination that incudes a medical
opinion as to the etiologic relationship
between any current back disability and
in-service back pathology or
symptomatology. The claims file should
be made available to the examiner for
review prior to the examination and
particular attention is to be made to the
service medical records descriptive of
treatment for a back disorder and any
post-service reports from treatment for a
back disorder, to include any additional
records which may be obtained from the
Catholic Medical Center.
3. Following completion of the
development above, the RO should review
the evidence and determine whether the
claim for entitlement to service
connection for residuals of a lumbar
laminectomy may be granted or whether new
and material evidence has been presented
to reopen and allow a claim for service
connection for a low back disorder, other
than residuals of a lumbar laminectomy.
If either of these two claims are denied,
the veteran and his representative should
be issued a supplemental statement of the
case to include citations to the relevant
laws and regulations as needed, and the
case should be returned to the Board for
further appellate review.
4. The RO is to schedule the veteran for
a VA psychiatric examination that
includes an opinion as to the
relationship between any psychiatric
disorders currently shown and any
acquired in-service psychiatric
disability. The claims file should be
made available to the examiner for review
prior to the examination.
5. The RO is to adjudicate the issue of
whether there was clear and unmistakable
error in that portion of the February
1989 rating decision which denied
entitlement to service connection for low
back disorder. The Board is not by this
action assuming jurisdiction of this
issue, and a properly completed and filed
Notice of Disagreement and Substantive
Appeal with respect to this issue would
have to be filed for this issue to be
within the Board’s jurisdiction.
6. The RO is to complete a statement of
the case addressing the following issues:
(1) Entitlement to service connection for
a psychiatric disorder other than a
personality disorder, (2) Entitlement to
an extra-schedular evaluation for
migraine headaches, (3) Entitlement to an
earlier effective date for the grant of a
50 percent evaluation for migraine
headaches, and (4) Whether there was
clear and unmistakable error in that
portion of the February 1989 rating
decision which denied entitlement to
service connection for a right shoulder
disorder. The Board is not by this
action assuming jurisdiction of these
issues, and a properly completed and
submitted Substantive Appeal addressing
any such issue would be required in order
for the Board to have jurisdiction over
any of these four issues.
The purpose of this REMAND is to assist the veteran in the
development of his appeal, and the Board does not intimate an
opinion, either legal or factual, as to the ultimate
disposition warranted in this case. No action is required of
the veteran until he is notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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